PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MAME FATOU NIANG, 

Petitioner,

v.  No. 06-1470

ALBERTO R. GONZALES,

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals.

(A97-638-292)

Argued: March 14, 2007

Decided: June 12, 2007

Before NIEMEYER and WILLIAMS, Circuit Judges, and T. S.

ELLIS, III, Senior United States District Judge for the Eastern

District of Virginia, sitting by designation.

Affirmed by published opinion. Senior Judge Ellis wrote the majority

opinion, in which Judge Niemeyer joined. Judge Williams wrote an

opinion concurring in part and dissenting in part. 

COUNSEL

ARGUED: Peter Nyoh, ENOW & PATCHA, Silver Spring, Maryland, for Petitioner. Kristin Kay Edison, UNITED STATES

DEPARTMENT OF JUSTICE, Office of Immigration Litigation,

Washington, D.C., for Respondent. ON BRIEF: Kell Enow, ENOW

& PATCHA, Silver Spring, Maryland, for Petitioner. Peter D. Keis-
ler, Assistant Attorney General, Civil Division, M. Jocelyn Lopez

Wright, Assistant Director, UNITED STATES DEPARTMENT OF

JUSTICE, Office of Immigration Litigation, Washington, D.C., for

Respondent. 

OPINION

ELLIS, Senior District Judge: 

This is an appeal from a final order of removal of the Board of

Immigration Appeals ("BIA"), denying petitioner’s application for

withholding of removal because (i) she failed to establish a "clear

probability" of persecution and (ii) she could not assert a claim based

on a fear that her five-year old U.S. citizen daughter would be subjected to female genital mutilation ("FGM")1

 if petitioner were

removed to Senegal and her daughter accompanied her. We affirm on

the record presented.

I.

Petitioner, Mame Fatou Niang ("Niang"), is a native and citizen of

Senegal. In August 2000, she was admitted to the United States as a

non-immigrant visitor authorized to remain in the U.S. until November 8, 2000. 

1

"FGM" refers to a group of "surgical procedures involving the

removal of some or all of the external genitalia, performed primarily on

girls and young women in Africa and Asia." Haoua v. Gonzales, 472

F.3d 227, fn. 5 (4th Cir. 2007). These barbaric surgical procedures constitute an extreme form of child abuse and are an insult to human dignity

and an affront to any civilized people. As we have previously noted,

FGM is "[o]ften performed under unsanitary conditions with highly rudimentary instruments" and results in the painful, permanent disfigurement

of the female genitalia, and exposes victims to a myriad of serious and

potentially life-threatening complications. Id. (listing as possible complications: bleeding, infection, urine retention, stress, shock, psychological

trauma, and damage to the urethra and anus). 

2 NIANG v. GONZALES
Soon after her arrival in the U.S., Niang became romantically

involved with Papa Samba Ane ("Ane"), a Senegalese native who has

nearly completed the process of adjusting his status in the U.S. On

July 8, 2001, Niang gave birth to the couple’s first child, a daughter

named Fatime Ane ("Fatime"). Two years later, on February 11,

2003, Niang gave birth to the couple’s second child, a son named

Mohamed Ane ("Mohamed"). 

Several months after the birth of Mohamed, in August 2003, Niang

filed an asylum application with the U.S. Department of Homeland

Security ("DHS"), seeking relief from removal based on her religion

and her membership in a particular social group. In an affidavit

appended to her application, Niang stated that she is from northern

Senegal and is a member of the Toucouleur ethnic group, a group

that, as she put it, practices FGM at "an alarming[ly] high rate." J.A.

87.2 Indeed, Niang stated she was subjected to FGM at a young age,

causing her to suffer long-lasting health and psychological problems.

Niang further stated that Fatime’s paternal grandparents have been

requesting, in "intimidating and threatening letters," that Niang take

Fatime to Senegal to undergo FGM.3 Moreover, Niang stated Ane is

"indifferent" to his parents’ request and "[t]his indifference . . . means

[Ane] tacitly accept[s] their request." J.A. 88-89. As a result of Ane’s

indifference and his parents’ request, Niang stated she feared that if

she were removed to Senegal, her daughter would be forced to

undergo FGM there. J.A. 87. 

On October 28, 2003, DHS charged Niang with removability, pursuant to 8 U.S.C. § 1227(a)(1)(B), for remaining in the U.S. beyond

the time permitted by her non-immigrant visa. In response to this

charge, Niang, represented by counsel, appeared before an Immigration Judge ("IJ") and admitted the charges against her, conceded

removability, but sought relief from removal in the form of asylum,

2Citations to the "J.A." refer to the joint appendix filed in this appeal.

3Fatime’s maternal grandparents in Senegal do not appear to be a factor in the FGM equation, as Niang reports that they believe a daughter

belongs to her father’s family and that Niang "has no right to refuse to

have the child circumcised." If she does refuse, Niang believes "it will

be a shame on [Niang’s family] and they will be a target for insults from

other members of society." J.A. 89. 

NIANG v. GONZALES 3
withholding of removal, protection under the Convention Against

Torture ("CAT"), or, alternatively, voluntary departure. 

At a December 7, 2004 hearing on her various requests for relief

from removal, Niang testified that she is a citizen of Senegal and a

member of both the Mandingo and Toucouleur tribes and that while

in the U.S. she gave birth to Fatime and Mohamed, who, at the time

of the hearing, were 3 years old and 22 months old, respectively. Initially, Niang testified that Ane lives with her, but later testified that

Ane does not live with her, but that "he’s around sometimes." J.A. 44,

54. She further testified that the Toucouleur tribe is "traditionalist"

and continues to practice FGM and that although the Senegalese government has made FGM illegal, "people continue to practice excision

in hiding" and she "saw many violations of that law." J.A. 42. She

also testified that in 2002 she read a letter from Fatime’s paternal

grandfather asking that Fatime be sent to Senegal to undergo FGM

and learned that Ane "agrees with his family." J.A. 45. Niang’s asylum application was, in part, prompted by this letter. 

In support of her application and testimony, Niang submitted (i)

medical documents indicating that she had been subjected to FGM

and that in December 2000, she suffered from fibroids; (ii) her Senegal passport and her children’s birth certificates; (iii) the June 12,

2002 letter, purportedly from Ane’s father; and (iv) a U.S. Department of State report concerning FGM in Senegal, released June 1,

2001. This report states, inter alia, 

(a) that studies estimate between 5% and 20% of the

female population has been subjected to FGM;

(b) that up to 88% of "females among the minority Halpularen (Peul and Toucouleur) in rural areas of eastern

and southern Senegal practice FGM;" and

(c) that in January 1999, the Senegalese government made

FGM illegal, but there have been no convictions as of

the 2001 report. 

J.A. 112-15. 

4 NIANG v. GONZALES
The government also submitted documentary evidence, namely the

2003 Country Report on Human Rights Practices for Senegal, prepared by the U.S. Department of State and released on February 25,

2004. This report states, inter alia, 

(a) that FGM is not practiced by the Wolof, the largest

ethnic group, constituting 43% of the Senegalese population;

(b) that one of the most extreme forms of FGM is sometimes practiced by the Toucouleur, particularly in rural

areas;

(c) that FGM is most prevalent in eastern Senegal;

(d) that FGM is a criminal offense, carrying a jail term of

6 months to 5 years for those practicing FGM or ordering that it be carried out. As of the 2003 report, trials

in a 2002 and a 2001 case were still pending;

(e) that the government has established programs to educate women about the dangers of FGM and there are

national and local government action plans against

FGM; and

(f) that since 1997, 1,031 villages, including 13 in northern Senegal, have prohibited FGM, constituting over

20% of the villages that had previously practiced FGM.

J.A. 64-75. 

Following this hearing, the IJ denied all of Niang’s applications for

relief and ordered her removed to Senegal. Specifically, the IJ found

Niang’s asylum application untimely, as it was filed more than three

years after her arrival in the U.S. The IJ also found that circumstances

did not warrant tolling. Despite this finding, the IJ went on to address

the substance of Niang’s asylum claim and found it meritless because

Niang had not established that she would be persecuted on the basis

of any protected ground if removed to Senegal, nor had she estabNIANG v. GONZALES 5
lished any valid derivative claim given that her daughter, a U.S. citizen, was entitled to remain in the U.S.4

 The IJ also denied Niang’s

claim for withholding of removal based on a fear of persecution for

the same reasons, noting correctly that this result follows from the

fact that the standard applicable to a withholding claim is more rigorous than the standard applicable to an asylum claim. See Camara v.

Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004). The IJ further concluded

that Niang’s CAT claim failed and that she was ineligible for voluntary departure. 

Niang appealed the IJ’s decision to the BIA, which affirmed the

IJ’s factual findings and specifically concurred with the IJ’s conclusions that Niang’s asylum application was untimely and that Niang

had failed to demonstrate either past persecution or a clear probability

of future persecution. 

Niang now appeals only two aspects of the BIA’s decision, thereby

presenting two questions for review: (i) whether Niang can assert a

claim for withholding of removal based on the psychological harm

she will suffer if her daughter accompanies her to Senegal and is there

subjected to FGM; and (ii) whether Niang can assert a "derivative"

claim for withholding of removal based on the alleged persecution her

4The IJ noted that Niang was not eligible for a grant of humanitarian

asylum because the fact that she was subjected to FGM thirty-three years

ago was not sufficiently compelling under In re Chen, 20 I. & N. Dec.

16 (BIA 1989), which held that an IJ, in his discretion, may grant asylum

in the absence of a well-founded fear of future persecution where an

applicant suffered past atrocious forms of persecution. See 8 C.F.R.

§ 1208.13(b)(1)(iii)(A) (providing that an applicant who demonstrates

"compelling reasons for being unwilling or unable to return to the country arising out of the severity of past persecution," may be granted discretionary asylum absent a well-founded fear of future persecution). 

While Niang did not appeal this decision, it is worth noting that a

humanitarian grant of asylum may be warranted in circumstances where

a mother, who has been subjected to FGM, fears her daughter will be

subjected to FGM if she accompanies her mother to the country of

removal. See Osigwe v. Ashcroft, 77 F. Appx. 235, 235 (5th Cir.

2003)(remanding to BIA to adjudicate humanitarian asylum claim where

applicants claimed their minor daughter, a U.S. citizen, would undergo

FGM if they were removed and she accompanied them). 

6 NIANG v. GONZALES
daughter will face if she accompanies Niang to Senegal and is there

subjected to FGM5

II.

At the outset, it is important to note that FGM — a barbaric practice unbecoming of a civilized society — is prohibited by law in this

and many other countries, including Senegal.6 Accordingly, we and

our sister circuits have appropriately recognized that FGM constitutes

"persecution" within the meaning of the Immigration and Nationality

Act ("INA"), 8 U.S.C. § 1101 et seq., and thus the threat of FGM may

serve as a basis for asylum or withholding of removal claims. See

Barry v. Gonzales, 445 F.3d 741, 745 (4th Cir. 2006). This settled

principle is not at issue here. Instead, the essential question presented

in this appeal is whether the record in this case compels reversal of

5Notably, because Niang does not appeal the BIA’s decision with

respect to her untimely asylum application, her CAT claim, or her claim

for voluntary departure, she has waived these issues. United States v. AlHamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004) (stating that issues not

raised on appeal are waived).

It is worth noting that, even assuming Niang had not waived the timeliness issue with respect to her asylum claim, we lack jurisdiction to

review the BIA’s decision in this respect. 8 U.S.C. § 1158(a)(3); see

Blade v. Gonzales, 2007 U.S. App. LEXIS 3563, at *1-2 (4th Cir. 2007)

(finding no jurisdiction to review asylum claim denied as untimely); Lin

v. Gonzales, 190 Fed. Appx. 301, 305 (4th Cir. 2006) (stating where an

alien simply challenges "the timeliness of an alien’s asylum application

[this] is usually a question of fact . . . [which] courts of appeal will not

have jurisdiction to review"). 

6

See 18 U.S.C. § 116 (making the practice of FGM illegal); Senegal

Law No. 99-05 of 29 January 1999 Amending Various Provisions of the

Penal Code [Art. 2]; Report of the Committee on the Elimination of All

Forms of Discrimination Against Women, General Recommendation No.

14, U.N. GAOR, 45th Sess., Supp. No. 38 & Corr. 1, at 80, P 438, U.N.

Doc. A/45/38 (1990); Declaration on the Elimination of Violence

Against Women, G.A. Res. 104, U.N. GAOR, 48th Sess., Art. 2(a), U.N.

Doc. A/48/629 (1993); Traditional or Customary Practices Affecting the

Health of Women and Girls, G.A. Res. 128, U.N. GAOR, 56th Sess.,

Supp. 49 at 2, U.N. Doc. A/RES/56/128 (2001). 

NIANG v. GONZALES 7
the BIA’s determination that Niang is not eligible for withholding of

removal on the grounds she asserts. 

The question is appropriately framed in this fashion because an

alien asserting a claim for withholding of removal on persecution

grounds must show "that it is more likely than not that her life or freedom would be threatened in the proposed country of removal because

of her race, religion, nationality, membership in a particular social

group, or political opinion." Haoua, 472 F.3d at 232.7 More precisely,

an applicant for withholding bears the burden of demonstrating a

"clear probability" that she will face persecution in the country of

removal. Rusu v. INS, 296 F.3d 316, 324 n.13 (4th Cir. 2002) (citing

INS v. Stevic, 467 U.S. 407, 430 (1984)); see 8 C.F.R. § 1208.16. It

follows from these principles that where, as here, the BIA has found

that the petitioner has not met this burden, we will affirm the BIA’s

determination if it is supported by substantial evidence on the record

considered as a whole. INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992). Thus, the IJ’s or the BIA’s factual findings8 are "conclusive

unless the evidence before the BIA was such that any reasonable

adjudicator would have been compelled to conclude to the contrary."

Haoua, 472 F.3d at 231 (emphasis added). And significantly, where

the "record [ ] plausibly could support two results: the one the IJ

chose and the one [the petitioner] advances," reversal is only appropriate where the court "find[s] that the evidence not only supports [the

opposite] conclusion, but compels it." Balogun v. Ashcroft, 374 F.3d

492 (7th Cir. 2004) (emphasis added) (citing Elias-Zacarias, 502 U.S.

at 481 n.1). 

In sum then, the specific questions presented, distilled to their

essence, are whether the record compels reversal of the BIA’s determinations (i) that Niang cannot assert a claim for withholding of

7

In particular, 8 U.S.C. § 1231(b)(3)(A) provides that the "Attorney

General may not remove an alien to a country if the Attorney General

decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion." 

8Because the BIA affirmed the IJ’s order and supplemented it, the factual findings and reasoning contained in both decisions are subject to

judicial review. See Haoua, 472 F.3d at 230. 

8 NIANG v. GONZALES
removal based on the psychological harm she will suffer if her daughter accompanies her to Senegal and is there subjected to FGM; and

(ii) that Niang cannot assert a "derivative" claim for withholding of

removal based on the alleged persecution her daughter will face if she

accompanies Niang to Senegal and is there subjected to FGM.

A.

Niang’s first claim for withholding of removal focuses on the psychological harm she claims she will suffer if her daughter accompanies her to Senegal and is there subjected to FGM. This claim fails

as a matter of law because it is well-established that "[p]ersecution

involves the infliction or threat of death, torture, or injury to one’s

person or freedom." Li v. Gonzalez, 405 F.3d 171, 177 (4th Cir. 2005)

(emphasis added). This settled principle is firmly anchored in the statutory language stating that withholding of removal is warranted

where "the alien’s life or freedom would be threatened . . ." on the

basis of a protected ground. 8 U.S.C. § 1231(b)(3)(A) (emphasis

added). Thus, to establish a claim for withholding an applicant cannot

rely solely on psychological harm or a threat of such harm to others,

but must also establish injury or a threat of injury to the applicant’s

person or freedom.9See Osigwe v. Ashcroft, 77 F. Appx. 235 (5th Cir.

2003) (finding petitioners could not establish an asylum claim "based

9While the dissenting opinion argues that "[t]his holding stands in tension with the BIA’s decision in In re C-Y-Z, 21 I. & N. Dec. 915 (BIA

1997) (en banc)," a review of that decision reveals no such tension. As

the dissent points out, C-Y-Z held that a petitioner could apply for asylum

on the basis of his spouse’s forced sterilization. Importantly, the BIA

reached this holding based on "the enactment of section 601(a) of the

IIRIRA [defining refugee] and the agreement of the parties that forced

sterilization of one spouse on account of a ground protected under the

Act is an act of persecution against the other spouse." Id. at 919. Thus,

the BIA’s holding was not based on, nor did the BIA even discuss, any

alleged psychological harm that would be suffered by the petitioner if his

spouse was forced to be sterilized. It appears, then, that C-Y-Z stands for

the proposition that the BIA permits a petitioner to support his petition

by relying on harm to another person only in the limited context of

forced sterilizations; it does not stand for the proposition that the BIA

permits petitioners to rely on psychological harm, without physical harm,

to establish eligibility for withholding of removal under the INA. 

NIANG v. GONZALES 9
solely on their daughter’s risk of being subject to FGM if she is

returned to Nigeria").10 The record reflects that Niang has not met this

requirement.

Niang hopes to avoid this conclusion by relying on Abay v. Ashcroft, 368 F.3d 634 (6th Cir. 2004). There, the Sixth Circuit, relying

on BIA decisions suggesting a "governing principle" in favor of

granting parents refugee status where their child faces physical torture, held that an alien mother was eligible for asylum, in her own

right, based upon her fear that her minor daughter, also an asylum

applicant, would be forced to undergo FGM if the daughter were

removed. Id. at 642. Significantly, Abay is the only federal decision

permitting a parent to seek relief, in her own right, based solely on

the psychological suffering she will endure if her daughter will be

subjected to FGM upon removal. We do not find Abay persuasive

here, both because it is factually distinguishable and because psychological harm, without any accompanying physical harm, does not constitute "persecution." First, Abay is clearly distinguishable because,

unlike the asylum applicant in Abay, Niang’s daughter is a U.S. citizen; accordingly, there is no clear probability that Niang’s daughter

will be subjected to FGM as she could remain in the U.S., albeit without Niang, and avoid any potential persecution. Second, Abay is

unpersuasive because its holding is an unwarranted expansion of the

statutory definition of persecution. See 8 U.S.C. § 1231(b)(3)(A); Li

v. Gonzalez, 405 F.3d at 177). 

10See also Mengistu v. INS, No. 98-2003, 1999 U.S. App. LEXIS 5776,

at *6 (4th Cir. March 29, 1999) (affirming BIA’s determination where

petitioner "[a]lthough she may have been verbally abused, she did not

offer any evidence of a particular physical assault or other type of assault

that could be characterized as an act which would rise to the level of persecution"); Shoaira v. Ashcroft, 377 F.3d 837, 844 (8th Cir. 2004) (holding that petitioner’s psychological damages, resulting from the "rough

treatment" of government authorities and witnessing her father’s arrest,

did not rise to the level of persecution, noting "[w]hile mental or emotional injury may in part constitute persecution, persecution is an extreme

concept."); but see Mashiri v. Ashcroft, 383 F.3d 1112, 1120 (9th Cir.

2004) ("Persecution may be emotional or psychological, as well as physical."). 

10 NIANG v. GONZALES
In sum then, because "persecution" cannot be based on a fear of

psychological harm alone, Niang’s withholding claim fails as a matter

of law because it focuses solely on the psychological harm she claims

she will suffer if her daughter accompanies her to Senegal and is there

subjected to FGM. Accordingly, we affirm the BIA’s determination

in this respect.

B.

Niang also asserts a "derivative" claim for withholding of removal

based on the alleged persecution her daughter will face if she accompanies Niang to Senegal and is there subjected to FGM. While Niang

concedes that the INA does not provide for a "derivative" withholding

of removal claim,11 she argues that we should nonetheless recognize

a derivative claim in this case because of the barbaric nature of FGM.

While we have not previously addressed whether such a claim may

be asserted, other circuits have done so and declined to recognize this

derivative claim. Oforji v. Ashcroft, 354 F.3d 609, 618 (7th Cir. 2003)

(holding that "[A]n alien parent who has no legal standing to remain

in the United States may not establish a derivative claim for asylum

by pointing to potential hardship to the alien’s United States citizen

child in the event of the alien’s deportation."); Olowo v. Ashcroft, 368

F.3d 692 (7th Cir. 2004) (same); Axmed v. United States AG, 145 Fed.

11The INA does recognize a derivative asylum claim, thereby granting

asylum status to a spouse or child who accompanies an alien who is

granted asylum status, even though the spouse or child is not otherwise

eligible for asylum. See 8 U.S.C. § 1158(b)(3). As Niang conceded at

oral argument, this provision is inapplicable here because, even assuming

§ 1158(b)(3) extends to withholding claims, the statutory language does

not provide a derivative claim to parents of U.S. citizens. See 8 C.F.R.

§ 207.7(b) (listing parents as ineligible for derivative asylum). This omission may be intended to "prevent wholesale circumvention of the immigration laws by persons who enter the country illegally and promptly

have children to avoid deportation." Hernandez-Rivera v. INS, 630 F.2d

1352, 1356 (9th Cir. 1980). While such omission may work a hardship

on U.S. citizen children, who may be forced to accompany their parents

to the country of removal, we and our sister circuits have held that this

hardship is countenanced by the INA and not violative of the children’s

constitutional rights. Gallanosa v. United States, 785 F.2d 116, 120 (4th

Cir. 1986). 

NIANG v. GONZALES 11
Appx. 669, 675 (11th Cir. 2005) (upholding BIA’s decision to deny

motion to reopen asylum application, sought because petitioner feared

that if she were removed her U.S. citizen daughter would join her and

be subjected to FGM, agreeing with circuits declining to find a derivative claim where petitioner’s daughter is a U.S. citizen because "asylum is only available to aliens who are personally at risk"). 

The INA compels this result because the statutory text is clear —

to establish eligibility for withholding of removal the alien must demonstrate that "the alien’s life or freedom would be threatened" in the

country of removal. 8 U.S.C. § 1231(b)(3) (emphasis added). Thus,

the statute permitting withholding of removal does not encompass

derivative withholding claims, that is, claims for withholding of

removal based on persecution to another person; instead, an alien

seeking withholding of removal must establish that they will suffer

harm if removed. The one exception to this general rule is provided

by § 1229b, which provides that the Attorney General may cancel

removal of an alien if the alien (i) has been physically present in the

U.S. for ten years or more before seeking cancellation of removal; (ii)

has been of good moral character during such period; (iii) has not

been convicted of certain statutory offenses; and (iv) "establishes that

removal would result in exceptional and extremely unusual hardship

to the alien’s spouse, parent, or child, who is a citizen of the United

States." Thus, the INA provides that hardship to U.S. citizen children

may be a basis for cancellation of removal in certain specific circumstances not present here. Indeed, Niang’s counsel conceded at oral

argument that Niang is not entitled to relief under § 1229b, presumably because she cannot satisfy the ten year physical presence requirement. 

As § 1229b does not apply here, Niang may be entitled to relief

from removal only if she satisfies the standard set forth in § 1231, that

is, by demonstrating that she will suffer persecution if removed to

Senegal. See 8 U.S.C. § 1231(b)(3) (requiring that "the alien’s life or

freedom would be threatened" in the country of removal) (emphasis

added). She has not done so on this record, choosing instead to rely

on the alleged persecution her daughter will face if the daughter

accompanies Niang to Senegal. Where, as here, an alien is not eligible

for relief under § 1229b, there is simply no statutory or regulatory

authority for her to claim withholding of removal based on threatened

12 NIANG v. GONZALES
hardship to her U.S. citizen minor daughter.12 As Congress has not

provided for such a derivative withholding claim, we will not judicially amend the statute to create one. 

We are, of course, mindful that the result reached here presents

Niang with a heart-wrenching dilemma: either allow Fatime to remain

in the U.S. with her father but without her mother, or take Fatime to

Senegal where Niang fears Fatime will be forced to undergo FGM.

The tragic nature of this choice is undeniable, but it does not warrant

that we recognize a derivative claim where Congress has not seen fit

to provide for it.13 See Oforji, 354 F.3d at 618 (recognizing the difficult choice faced by petitioner, but explaining that "Congress has

foreseen such difficult choices, but has opted to leave the choice with

the illegal immigrant, not the courts"). Accordingly, consistent with

the other circuits that have considered this question, we conclude that

Niang may not assert a derivative claim for withholding of removal

based on the potential persecution of her U.S. citizen daughter if

Niang is removed to Senegal and her daughter accompanies her.14 See

12Cf. In re S-L-L, 24 I. & N. Dec. 1, 31 n.1 (Pauley, concurring)

("While FGM may be a pernicious form of persecution, it is difficult to

understand why a fear that it may be performed on another person, albeit

one’s child, is a ground for asylum, any more than if a parent had a fear

that a child would be singled out for persecution on account of political

opinion, race, or religion") (emphasis in original). 

13It is worth noting that, in some circumstances, it might be appropriate

to remand to the BIA a claim presenting such a Sophie’s choice to determine whether it warrants a grant of humanitarian asylum. See Osigwe,

77 F. Appx. at 235 (remanding to BIA to adjudicate humanitarian asylum

claim where applicants claimed their minor daughter, a U.S. citizen,

would undergo FGM if they were removed and she accompanied them).

In this case, the IJ considered whether the circumstances warranted

humanitarian asylum and decided that they did not. As the humanitarian

asylum claim was decided, and as Niang has not appealed that decision,

a remand is not appropriate here. 

14Notably, even assuming Niang could assert a derivative claim, the

record does not compel reversal as Niang did not establish a "clear probability" that Fatime would be subjected to FGM if Niang is removed.

This is so because (i) Fatime is a U.S. citizen, entitled to remain in the

U.S., despite her mother’s removal; (ii) beyond Niang’s testimony, there

NIANG v. GONZALES 13
Oforji, 354 F.3d 609; Olowo, 368 F.3d 692; Axmed, 145 Fed. Appx.

669.

For the foregoing reasons, we dismiss the petition for review and

affirm the BIA’s decision. We do so reluctantly because we recognize

that removal places Niang on the horns of a terrible dilemma. While

it is entirely reasonable to believe that the law ideally should not present mothers with such dilemmas, the existing law does. Thus, the

state of the law and the contents of this record require that we affirm

the BIA.

AFFIRMED

WILLIAMS, Circuit Judge, concurring in part and dissenting in part:

I concur in the majority’s analysis of Niang’s derivative claim of

withholding of removal based on harm to her daughter.1 I disagree,

however, with the majority’s disposition of Niang’s claim of withholding based on the psychological harm Niang claims she will suffer

if she is removed to Senegal and forced to subject her daughter to

female genital mutilation (FGM). For the reasons that follow, I

is no record evidence that Ane favors FGM; (iii) aside from the 2002 letter, purportedly from Ane’s father, there is no evidence of "threatening

or demanding letters" from Ane’s family, as Niang testified she received;

(iv) there is no clear record evidence that FGM is practiced by the Toucouleur in northern Senegal; and (v) State Department reports indicate

FGM is growing less common and "hardly practiced at all in the most

heavily populated urban areas;" thus, Niang might protect Fatime by

residing in an urban area. 

1

I agree with the majority that we lack jurisdiction to review the BIA’s

denial of Niang’s asylum application as untimely, see INA § 208(a)(3),

8 U.S.C.A. § 1158(a)(3) (West 2005), and that Niang has waived appeal

of her Convention Against Torture (CAT) claim and her claim of voluntary departure, see Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6

(4th Cir. 1999) (noting that Federal Rule of Appellate Procedure

28(a)(9)(A) requires an appellant’s opening brief to set forth the appellant’s "contentions and the reasons for them" and that failure to comply

with the Rule’s dictates with respect to a particular claim triggers abandonment of that claim on appeal). 

14 NIANG v. GONZALES
believe that the majority, by independently creating a per se rule that

psychological harm alone cannot constitute persecution, without considering the Board of Immigration Appeals (BIA)’s interpretation of

the term "persecution" and without remanding the case for the BIA

to address the issue in the first instance, oversteps its bounds and fails

to afford appropriate deference to the BIA. Accordingly, I respectfully dissent.

I.

A.

Although the majority opinion purports to apply the substantial evidence standard, it in fact conducts a de novo inquiry into the meaning

of the term "persecution" in 8 C.F.R. § 208.16 (West 2007). From this

de novo inquiry, the majority derives a broad and potentially farreaching legal precedent — that "psychological harm, without any

accompanying physical harm, does not constitute ‘persecution’." Ante

at 10. This holding stands in tension with the BIA’s decision in In re

C-Y-Z, 21 I. & N. Dec. 915 (BIA 1997) (en banc), which held that an

applicant for asylum and withholding of removal could establish persecution by virtue of his wife’s forced sterilization. Neither the statute

nor its implementing regulations define "persecution," and the majority, by (1) ignoring the BIA’s interpretation of the term "persecution"

in In re C-Y-Z and (2) independently establishing such a broad precedent without remanding for the BIA to consider the question in the

first instance, fails to afford appropriate deference to the agency. 

Although we review de novo questions of law determined by the

BIA, Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 278 (4th Cir.

2004), we must afford appropriate deference to the BIA’s interpretation of the Immigration and Nationality Act (INA or "the Act") and

any attendant regulations, Christensen v. Harris County, 529 U.S.

576, 586-88 (2000) (stating that Chevron deference should be

afforded to an agency’s interpretation of an ambiguous statute and

Auer deference to an agency’s interpretation of its own regulation).

Because the BIA adopted, affirmed, and supplemented the Immigration Judge (IJ)’s decision, "we review the decision of the IJ as suppleNIANG v. GONZALES 15
mented by the BIA." Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.

2005).2

Under Chevron, a court reviewing an agency’s construction of the

statute it administers must first determine "whether Congress has

directly spoken to the precise question at issue." Chevron U.S.A., Inc.

v. Natural Resources Def. Council, Inc., 476 U.S. 837, 842 (1984). "If

the intent of Congress is clear, that is the end of the matter; for the

court, as well as the agency, must give effect to the unambiguously

expressed intent of Congress." Id. at 842-43. If, however, "the statute

is silent or ambiguous with respect to the specific issue, the question

for the court is whether the agency’s answer is based on a permissible

construction of the statute." Id. at 843. Pursuant to Auer, an agency’s

interpretation of its own regulations is "controlling unless plainly

erroneous or inconsistent with the regulation." Auer v. Robbins, 519

U.S. 452, 461 (1997) (internal quotation marks omitted). 

The majority does not suggest that the term "persecution," which

both the INA and its implementing regulations leave undefined, is

unambiguous. Nevertheless, the majority declines to afford deference

to, or even address, the BIA’s interpretation of the term. The BIA,

however, has not interpreted "persecution" to require a physical

assault. To the contrary, in In re C-Y-Z, the Board, sitting en banc,

held that an applicant for asylum and withholding of removal could

establish persecution by virtue of his wife’s forced sterilization. The

Board reversed the IJ’s determination that the applicant was "in effect

. . . seek[ing] to ride on his wife’s coattails" and had not himself been

persecuted. Id. at 916. Board Member Rosenberg wrote a separate

concurring opinion noting that it is not unusual in asylum cases for

an applicant to demonstrate a well-founded fear of persecution "although the harm experienced was not by him, but by a family member," and that "it . . . constitutes persecution for the asylum applicant

2The majority opinion correctly states that we review the BIA’s administrative findings of fact under the substantial evidence rule. See 8

U.S.C.A. § 1252(b)(4)(B) (West 2005); INS v. Elias-Zacarias, 502 U.S.

478, 481 (1992) (stating that an appellate court must uphold the BIA’s

factual findings if they are "supported by reasonable, substantial, and

probative evidence on the record considered as a whole" (internal quotation marks omitted)). 

16 NIANG v. GONZALES
to witness or experience the persecution of family members." Id. at

926 (Rosenberg, concurring). 

Also, we have previously stated that torture may constitute persecution. See Li v. Gonzales, 405 F.3d 171, 177 (4th Cir. 2005) (stating

that "[p]ersecution involves the infliction or threat of death, torture,

or injury to one’s person or freedom" (internal quotation marks omitted)). The majority, however, does not consider legal and non-legal

definitions of "torture," which indicate that torture may be purely

mental. The United Nations Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment (CAT),

defines "torture" as involving an "act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person

. . . ." CAT, Article 1 (emphasis added). Section 2340 of Title 18,

which implements the CAT, provides that "‘torture’ means an act

committed by a person acting under the color of law specifically

intended to inflict severe physical or mental pain or suffering (other

than pain or suffering incidental to lawful sanctions) upon another

person within his custody or physical control." 18 U.S.C.A. § 2340(1)

(West 2000 & Supp. 2006) (emphasis added). Similarly, dictionary

definitions of "torture" include anguish "of body or mind." See, e.g.,

Merriam-Webster’s Collegiate Dictionary 1320 (11th ed. 2004). 

Prior to 1965, the INA authorized the Attorney General "to withhold the deportation of any alien within the United States to any country in which in his opinion the alien would be subject to physical

persecution . . . ." Pub. L. No. 82-414, 66 Stat. 163, 214 (1952) (codified at INA § 243(h), 8 U.S.C.A. § 1253(h)) (emphasis added). In

1965, Congress amended INA § 243(h) "by striking out ‘physical persecution’ and inserting in lieu thereof ‘persecution on account of race,

religion, or political opinion.’" An Act to Amend the Immigration and

Nationality Act, Pub. L. No. 89-236, 79 Stat. 911, 913 (1965). Thus,

it appears that when Congress has intended to restrict the availability

of withholding of removal only to aliens who face persecution that is

physical in nature, it has done so explicitly. 

Accordingly, I believe that the majority has established an interpretation of "persecution" that the BIA might well consider too narrow.

The majority’s expansive holding is in tension with, and makes no

attempt to distinguish, the most analogous BIA decision available, In

NIANG v. GONZALES 17
re C-Y-Z. This conflict has occurred because the majority, rather than

reviewing an interpretation of "persecution" advanced by the IJ or

BIA, has independently established a judicial interpretation of the

term that is unnecessary for the resolution of this case. 

Neither the IJ nor the BIA purported to base its decision on the

interpretation of "persecution" established by the majority. Because

the BIA did not address whether the psychological harm Niang

alleged could constitute "persecution" within the meaning of 8 C.F.R.

§ 208.16, I believe that we are required to remand Niang’s claim to

the BIA for the agency to address the issue in the first instance. See

INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam) ("A court of

appeals is not generally empowered to conduct a de novo inquiry into

the matter being reviewed and to reach its own conclusions based on

such an inquiry. . . . Rather, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or

explanation." (internal quotation marks omitted)); SEC v. Chenery

Corp., 318 U.S. 80, 95 (1943) (holding that "an administrative order

cannot be upheld unless the grounds upon which the agency acted in

exercising its powers were those upon which its action can be sustained").

B.

The IJ premised his ineligibility determination on the finding that

Niang "ha[d] not shown that anything would happen to her because

of the action that may be performed against her daughter," and therefore "ha[d] not made a case for herself in regards to persecution."

(J.A. at 25.) In concluding that Niang had not shown anything would

happen to her, the IJ did not address the evidence in the record that

Niang would be prevented from protecting her daughter from FGM,

an experience that would cause Niang severe mental suffering that she

claimed would compound the psychological harm she had already

suffered from enduring FGM as a young girl. The IJ also did not

address evidence demonstrating the child’s relatives’ readiness to

employ "mystical and social means [of making Niang] regret" her

resistence to subjecting her daughter to FGM. (J.A. at 106.) 

Niang described the Toucouleur ethnic group, to which she

belongs, as "very traditional or traditionalist." (J.A. at 41.) She

18 NIANG v. GONZALES
explained that, for a Toucouleur girl, FGM represents an essential initiation ceremony, and although the government has made the practice

illegal, "family . . . has more weight than the laws," and she saw many

violations during her time in Senegal. (J.A. at 42.) Niang testified

that, as a result, she will have no means of protecting her daughter in

Senegal, where she will have "no power" and "wouldn’t have any

choice" in whether her daughter was subjected to FGM. (J.A. at 50.)

Niang also supplied a letter from her daughter’s paternal grandparents urging the child’s father, Papa Samba Ane, to bring the child to

Senegal for FGM. Niang testified that Ane "agrees with his family"

and wants his daughter to undergo FGM. (J.A. at 45.) Niang’s parents

also believe that Niang "ha[s] no right to refuse to have the child circumcised," and that, if she refuses to subject her daughter to FGM,

"it will be a shame on them and they will be a target for insults from

other members of the society." (J.A. at 89.)3

3

I am unpersuaded by the Government’s contention that Niang has not

demonstrated a clear probability that her daughter’s relatives would subject her to FGM if the child accompanied Niang to Senegal because the

Senegalese government has banned the practice, and, as a result of education and outreach programs, FGM is becoming less prevalent in Senegal. The Government concedes that "[t]he State Department Report of

record provided that . . . in general, female genital mutilation was a problem in Senegal." (Appellee’s Br. at 22.) Moreover, a State Department

Report specifically addressing FGM in Senegal provides that "up to 88

percent of females among the minority Halpularen (Peul and Toucouleur) in rural areas of eastern and southern Senegal practice [FGM]."

(J.A. at 112.) This report states that, "[a]lthough the government has been

actively seeking to eradicate this practice, we are unaware of any protection in place that might help a woman who wishes to avoid it." (J.A. at

114.) Furthermore, in addition to reports addressing generalized country

conditions, Niang presented evidence specifically related to her particular case. Her testimony and corroborating documentation revealed that

her daughter’s relatives have a strong desire to subject the child to FGM,

and that the father agrees with his parents that his daughter should

undergo FGM, but has thus far been indifferent to their demands. The

Government does not question the reliability of the evidence related to

Niang’s family, and the IJ’s decision does not address the likelihood that

the child would suffer FGM in Senegal. 

NIANG v. GONZALES 19
Niang further claimed that this mental suffering would be compounded by the lasting effects of the FGM that was performed on

Niang as a child. When Niang was seven years old, her parents took

her to a family circumsiser for "excision," which the World Health

Organization classifies as "Type II" FGM. This form of FGM

involves "the excision (removal) of the clitoral hood with or without

removal of all or part of the clitoris." (J.A. at 112.)4 Niang’s affidavit

provided that, as a result of this abuse, she "developed health complications ranging from vaginal infections [to] difficulty [in] conceiv-

[ing] to vaginal bleeding." (J.A. at 88.) A doctor in Gabon diagnosed

Niang with primary sterility and informed her that she would be

unable to have children. Nevertheless, Niang, "fought all [her] life to

have children." (J.A. at 48.) She was fortunate to have the benefit of

the excellent gynecological and obstetrical assistance available in the

United States, and, in 2001, at age 37, she gave birth to her daughter.

In 2003, when Niang was 39, her son was born. Niang had difficult

pregnancies with both children. During her first pregnancy, she experienced fibroids and bleeding and had an exam that was monitored as

an emergency because she had a condition known as placenta previa.5

4Both this court and the BIA have recognized that FGM constitutes

persecution within the meaning of the INA and its implementing regulations. See Haoua v. Gonzales, 472 F.3d 227, 231 (4th Cir. 2007) ("We

have heretofore recognized that FGM constitutes persecution within the

meaning of the Act . . . ." (internal quotation marks and alteration omitted)); In re Kasinga, 21 I. & N. Dec. 357, 365 (BIA 1996) (concluding

that FGM constitutes persecution within the meaning of the Act). We

have previously noted that the practice, which the majority aptly

describes as "an extreme form of child abuse . . .[,] an insult to human

dignity and an affront to any civilized people," ante at 2 n.1, is "[o]ften

performed under unsanitary conditions with highly rudimentary instruments, . . . is extremely painful, permanently disfigures the female genitalia, and exposes the girl or woman to the risk of serious, potentially

life-threatening complications," Haoua, 472 F.3d at 230 n.5 (internal

quotation marks and alteration omitted). 

5Placenta previa is a condition in which the placenta develops in the

lower uterine segment, in the zone of dilation, so that it completely or

partially covers the cervical os (opening). See Dorland’s Illustrated Medical Dictionary 1442 (30th ed. 2003). Complete placenta previa creates

a risk of blood loss, and may become life threatening. See Shelton v.

Univ. of Med. & Dentistry of N.J., 223 F.3d 220, 223 & n.3 (3d Cir.

2000). 

20 NIANG v. GONZALES
Medical records submitted with her application also reveal that she

required a Cesarean section to deliver her second child.6

Niang also asserted that her psychological development was "considerably hampered," (J.A. at 88), by the physical trauma that she

experienced as a young girl. She stated that "[t]he pains that I went

through and the blood that was shed on [the day she was mutilated]

keeps on revisiting me up until today." (J.A. at 88.) While in Senegal,

Niang "witnessed young girls and at times women die due to complication[s]" resulting from FGM. (J.A. at 90.) She opposed excision,

and because of this resistence, became estranged from her parents,

who "considered [her] as a rebel against established rules and customs

of the Toucouleur society." (J.A. at 88.) The IJ recognized that Niang

had been a victim of FGM and did not make an adverse credibility

finding or otherwise indicate that he disbelieved Niang. And, as

Niang asserts, no reasonable fact-finder could deny that a devoted

mother who continues to experience health and psychological problems as a result of FGM would experience severe mental suffering if

she were forced to allow her daughter to suffer the same type of persecution. The IJ’s finding that Niang "ha[d] not shown that anything

would happen to her because of the action that may be performed

against her daughter," (J.A. at 25), is irreconcilable with the record,

which reveals that Niang would experience considerable mental suffering if her relatives prevented her from sparing her daughter the

same persecution she endured as a child. Thus, I believe the record

compels the conclusion that Niang would suffer an actual and concrete psychological harm if she were prevented from protecting her

daughter from FGM. Accordingly, the IJ’s conclusion that she would

be unaffected is not supported by substantial evidence.

Finally, I note that, after finding that nothing would happen to

Niang as a result of her daughter’s persecution, the IJ reached another

conclusion. The IJ found that, "[a]dditionally, there’s no showing that

the daughter would have to go back to Senegal," because the father,

Ane, "seemingly [wa]s getting ready to be able to adjust his status

through his employment," and Niang could allow the children to

remain with him. (J.A. at 25.) That the child would not have to return

6

It is unclear from the record whether Niang’s first child was also

delivered by a Cesarean section. 

NIANG v. GONZALES 21
to Senegal to live, however, does not resolve the issue of whether the

child would be sent to Senegal to undergo FGM. The IJ noted that

although Niang feared that Ane would acquiesce and see that his

daughter suffered FGM, Ane had not previously made any effort to

take the child to Senegal. It is unclear, however, whether the IJ

viewed Ane’s past indifference as sufficient to support a finding that

there was no clear probability Ane would acquiesce to his parent’s

demands if Niang’s opposition were no longer an impediment to

sending the child to Senegal.7

Moreover, the IJ’s conclusion that the child would not have to

return to Senegal ignores Niang’s definitive statement that she would

take her children with her to Senegal, where she would be sent if

removed. Niang seems to face a Catch-22 — either leave her daughter

with a father who believes the child should undergo FGM, or take her

daughter with her to Senegal, where she will be powerless to prevent

her daughter’s relatives from subjecting her to FGM. 

Because the IJ assumed that Niang would be unaffected by her

daughter’s persecution, the IJ did not consider whether the harm

Niang would suffer constituted persecution within the meaning of the

INA and its implementing regulations. And, as a result, the IJ did not

fully consider whether the harm Niang would suffer was more likely

than not to occur. Because the IJ’s findings contradict the record and

do not take into account all of the evidence submitted by Niang, and

because neither the IJ nor the BIA fully considered whether the type

of harm Niang alleges can constitute persecution, the best course of

action would be to remand to allow the BIA to address these issues.

7

It is worth noting that, under the regulations governing adjustment of

status applications, 

the departure of an applicant who is not under exclusion, deportation, or removal proceedings shall be deemed an abandonment

of the application constituting grounds for termination of any

pending application for adjustment of status, unless the applicant

was previously granted advance parole by the Service . . ., and

was inspected upon returning to the United States. 

8 C.F.R. § 245.2(a)(4)(ii)(A) (West 2007). Thus, Ane could not freely

depart to Senegal while his adjustment of status application was pending.

22 NIANG v. GONZALES
II.

In sum, I believe that the majority, by independently establishing

a per se rule that psychological harm alone cannot constitute persecution, without considering the BIA’s decision in In re C-Y-Z and without remanding the case for the BIA to address the issue in the first

instance, oversteps its bounds and fails to afford appropriate deference to the agency. Accordingly, I respectfully dissent.

NIANG v. GONZALES 23